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399 F.

3d 315

Darick Demorris WALKER, Petitioner-Appellant,


v.
William Page TRUE, Warden, Sussex I State Prison,
Respondent-Appellee.
The Arc of Virginia, Amicus Supporting Appellant.
No. 04-16.

United States Court of Appeals, Fourth Circuit.


Argued: December 1, 2004.
Decided: February 17, 2005.

COPYRIGHT MATERIAL OMITTED ARGUED: David William


Ogden, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington,
D.C., for Appellant. Robert Quentin Harris, Assistant Attorney General,
Office of the Attorney General of Virginia, Richmond, Virginia, for
Appellee. ON BRIEF: David P. Donovan, Wilmer, Cutler, Pickering, Hale
& Dorr, L.L.P., McLean, Virginia; Lara Ann Englund, Alison J. Nathan,
Edward N. Siskel, Eric J. Hougen, Wilmer, Cutler, Pickering, Hale &
Dorr, L.L.P., Washington, D.C., for Appellant. Jerry W. Kilgore, Attorney
General of Virginia, Richmond, Virginia, for Appellee. Paul M. Smith,
Kathleen R. Hartnett, Jenner & Block, L.L.P., Washington, D.C., for
Amicus Supporting Appellant.
Before LUTTIG and GREGORY, Circuit Judges, and W. Craig
BROADWATER, United States District Judge for the Northern District of
West Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge LUTTIG wrote the
opinion, in which Judge BROADWATER joined. Judge GREGORY
wrote an opinion concurring in part and dissenting in part.
OPINION
LUTTIG, Circuit Judge:

Petitioner Darick Demorris Walker was convicted of capital murder by a jury in

the Circuit Court for the City of Richmond for the killings of Stanley Beale and
Clarence Threat within a three-year period. J.A. 253. Consistent with the jury's
verdict and sentencing recommendation, the trial judge imposed a sentence of
death. J.A. 253-54. Walker's conviction and sentence were affirmed on direct
appeal. Walker v. Commonwealth, 258 Va. 54, 515 S.E.2d 565 (1999), cert.
denied, 528 U.S. 1125, 120 S.Ct. 955, 145 L.Ed.2d 829 (2000). After
unsuccessfully pursuing state post-conviction relief, J.A. 254, Walker filed a
federal habeas petition. The district court denied that petition, and Walker
appealed. On appeal, Walker asserted, for the first time, that his execution
would violate the Eighth Amendment as interpreted by the Supreme Court in
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). We
construed this claim as a motion for authorization to file a successive section
2254 petition and granted Walker such authorization. Walker v. True, 67
Fed.Appx. 758, 770-71 (4th Cir.2003); J.A. 61.
On June 11, 2003, Walker filed his successive petition and accompanying
exhibits in the district court. J.A. 5-230. The district court dismissed Walker's
petition, J.A. 253, and the instant appeal followed. For the reasons set forth
below, we hold that the district court erred when it dismissed Walker's petition
before holding an evidentiary hearing and, consistent with this determination,
vacate the judgment of the district court and remand the case for further
proceedings consistent with this opinion.

I.
3

The procedural posture of Walker's claim before the district court bears on the
ultimate disposition of that claim, and we therefore explore it in some detail.
Because Atkins was decided after Walker's conviction and sentence became
final, that claim has never been presented in state court. Indeed, when we
authorized Walker to file a successive petition to raise his Atkins claim, we
noted that the district court was "free to dismiss it without prejudice to afford
the Commonwealth of Virginia the first opportunity to assess Walker's Atkins
claim." Walker, 67 Fed.Appx. at 770-71; J.A. 62. But after our decision
authorizing Walker to file his successive petition, Virginia enacted a statutory
framework addressing the "presentation of a claim of mental retardation by
persons sentenced to death before April 29, 2003." Va.Code 8.01-654.2. That
framework provides that petitioners, such as Walker, who have "completed both
a direct appeal and a [state] habeas corpus proceeding... shall not be entitled to
file any further habeas petitions in the Supreme Court and [the] sole remedy
shall lie in federal court." Id. (emphasis added).

As a consequence of Virginia's statutory framework, Walker presented his

Atkins claim for the first time before the district court. Accordingly, that claim
is not subject to deference under 28 U.S.C. 2254(d) because it has never been
"adjudicated on the merits" in state court. The district court appeared to review
Walker's claim de novo, and we do the same. See Hudson v. Hunt, 235 F.3d
892, 895 (4th Cir.2000) ("Because the claim was not adjudicated on the merits,
our review is de novo.").
5

The district court disposed of Walker's petition by granting the state's motion to
dismiss.1 In ruling on such a motion the district court was obliged to "assume
all facts pleaded by" Walker "to be true." Rouse v. Lee, 339 F.3d 238, 248 n. 8
(4th Cir.2003) (holding that such a standard is required in a section 2254
proceeding when the district court grants "the State's motion to dismiss").
Instead of assuming the facts pleaded in Walker's petition to be true, however,
the district court found that Walker had "failed to meet his burden of proof in
presenting his claim of mental retardation," J.A. 253 (emphasis added), and
as explained in detail below reached this conclusion by relying on material
that was not included in Walker's petition and by either ignoring or discounting
the factual allegations in the petition. Indeed, even the state admits that the
district court's ruling was "in the nature of a grant of summary judgment."
Respondent's Br. at 14. But such a ruling cannot be upheld where, as here, the
facts alleged in Walker's petition and supported by his accompanying exhibits
demonstrate that several material facts remain disputed.2

A.
6

While Walker's claim ultimately derives from his rights under the Eighth
Amendment, whether he is mentally retarded is governed by Virginia law. As
the Supreme Court observed in Atkins, "[t]o the extent there is serious
disagreement about the execution of mentally retarded offenders, it is in
determining which offenders are in fact retarded.... Not all people who claim to
be mentally retarded will be so impaired as to fall within the range of mentally
retarded offenders about whom there is a national consensus. As was our
approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335
(1986), with regard to insanity, `we leave to the states the task of developing
appropriate ways to enforce the constitutional restriction upon their execution
of sentences.'" 536 U.S. at 317, 122 S.Ct. 2242 (emphasis added).3
Accordingly, whether Walker has "stated a claim" in his petition depends on
whether he has set forth facts that, if true, would demonstrate that he is
mentally retarded under Virginia law.

Under Virginia law, Walker bears the burden of establishing that he is mentally
retarded by a preponderance of the evidence. Va.Code 19.2-264.3:1.1.

"Mentally retarded" is defined as


8

a disability, originating before the age of 18 years, characterized concurrently


by (i) significantly subaverage intellectual functioning as demonstrated by
performance on a standardized measure of intellectual functioning administered
in conformity with accepted professional practice, that is at least two standard
deviations below the mean and (ii) significant limitations in adaptive behavior
as expressed in conceptual, social, and practical adaptive skills.

Id. With respect to the "standardized measure of intellectual functioning"


referenced in subpart (i), the Virginia Code provides that "the Commissioner of
Mental Health, Mental Retardation and Substance Abuse services shall
maintain an exclusive list of standardized measures of intellectual functioning
generally accepted in the field of psychological testing." Va.Code 19.2264.3:1.1(B)(1) (emphasis added).4 Thus, Walker must allege that his disability
originated before the age of eighteen, and that it is characterized concurrently
by a score two standard deviations below the mean on an approved
standardized test and that there exist significant limitations in his adaptive
behavior.

10

Walker has set forth facts that, if true, satisfy the elements of Virginia's
definition of mentally retarded. Specifically, Walker's petition refers to
affidavits where, after recounting evidence of his subaverage intellectual
functioning, the limitations in his adaptive behavior, and the developmental
origin of his disability, experts conclude that Walker satisfies the statutory
definition. See J.A. 11 (declaration of Dr. Weinstein concluding that "[b]ased
on my testing of Mr. Walker and my review of [his school] records ... it is my
professional opinion that Mr. Walker is mentally retarded according to the
criteria set forth in ... the Commonwealth of Virginia in its new statute."); id.
19-20 (declaration of Dr. Sautter concluding that "Darick's cognitive deficits
are consistent with mental retardation as that disability is defined by ... the
Commonwealth.").

11

With respect to the intellectual functioning component of the definition, Walker


has presented the results from the Wechsler Intelligence Scale for ChildrenRevised that he was administered in 1984 when he was eleven years old. J.A.
13. According to Walker, the full scale score he received 76 is two
standard deviations below the mean. Id. 13-14. Walker has also submitted his
full scale score of 61 on the General Ability Measure for Adults test (GAMA)
that was administered in May of 2003. That score is indisputably two standard
deviations below the mean. J.A. 27.

12

13

Walker has also set forth facts pertaining to the limitations in his adaptative
behavior both before and after he was eighteen years old. With respect to his
conceptual skills, Walker has identified "deficiencies in ... language, reading,
and writing," J.A. 20-21 (referencing school records), an inability to handle
money, "difficulty dealing with unstructured time," and inordinate dependence
on others. J.A. 22-23. With respect to his social skills, Walker has identified
testimony from his family which suggests that "he never had friends who were
his peers" and school records which indicate that "Darick has a low frustration
tolerance and an inadequate control over basic impulses" and that "due to
emotional immaturity, learning difficulties, and inability to control his own
behavior, Darick appears to be in need of special education as a child with
specific learning disabilities as well as emotional disturbance." J.A. 24. With
respect to his practical skills, Walker has identified family member testimony
which indicates that "Darick never rented an apartment or paid a bill," that he
did not hold a job, and that he was dependent on family members for
transportation because he did not have a drivers license and did not take the
public bus. J.A. 26.
Based on the foregoing, we conclude that the facts alleged in Walker's petition,
if true, would establish that he is mentally retarded and that his execution is
therefore prohibited by the Eighth Amendment.

B.
14

The district court did not suggest that Walker had failed to state a claim; rather,
it concluded that "the evidence presented by Walker is insufficient to conclude,
by a preponderance of the evidence, that he is mentally retarded." J.A. 268. The
district court based this finding exclusively on its determination that "all [three]
of Walker's scores on the WAIS-III, the only IQ test he was administered that
is accepted in Virginia, are above the level of mentally retarded." Id. 268
(emphasis added). Notably, at the time of the district court's initial ruling, the
GAMA test was not on Virginia's list of acceptable measures of intellectual
functioning. The addition of the GAMA test to that list formed the basis of
petitioner's motion to amend the original judgment. The district court denied
that motion, finding that "the GAMA test was administered to petitioner in May
of 2003 when petitioner was 30 years old. The test, therefore, does not support
a manifestation of retardation before the age of 18." J.A. 305.

15

As the foregoing references reveal, in ruling on Virginia's motion to dismiss,


the district court did not assume the facts alleged by Walker in his petition to be
true. The district court's judgment could not be affirmed, however, even if its
determination had been in the context of summary judgment, as the state

suggests it should be construed, because the district court resolved factual


disputes in favor of the moving party.
16

Specifically, the district court found that Walker's 1984 WISC score and his
1998 WAIS score demonstrated that he was not retarded.5 J.A. 268. But Walker
vigorously protested such conclusions in his petition. As to the 1984 WISC test,
he alleged that his score of 76 actually supports his petition because it is two
standard deviations below the mean, even though only scores of 70 or lower
represent an IQ two standard deviations below the mean.6 Walker's claim is
based upon expert affidavits describing the "Flynn Effect," which posits that IQ
scores rise over time and that IQ tests that are not "re-normed" to adjust for
rising IQ levels will overstate a testee's IQ. Under this theory, a score of 70 on a
test that has recently been re-normed will be two standard deviations below the
mean of 100, while a score on the WISC given in 1984 which had last been
re-normed in 1972 purportedly overstates a testee's IQ by over 4 points, or
1/3 of a point per year. J.A. 276-77. Thus, according to Walker, his score of 76
on the 1984 WISC should be viewed as a 72. J.A. 274-76.

17

But even Walker's re-normed score of 72 does not necessarily indicate that he
has "perform[ed] on a standardized measure of intellectual functioning ... two
standard deviations below the mean" as set forth under the Virginia statute. On
a properly normed IQ test only scores of 70 or lower are two standard
deviations below the mean. Walker nonetheless maintains that 72 is a
qualifying score because, he claims, any IQ test score must be considered in the
context of the standard error of measurement. See J.A. 14. According to the
affidavits submitted by Walker's experts, the American Association on Mental
Retardation ("AAMR") and the American Psychological Association ("APA")
recognize that IQ tests have a measurement error of plus or minus five points.
J.A. 276 (expert testimony that the AAMR and the APA "require measurement
error to be taken into account when IQ test scores are considered"). Walker's
experts therefore suggest that 72 is a qualifying score because "the AAMR and
APA concur that the IQ criteria for falling two standard deviations below the
mean (IQ 70) means that individuals who have a measured IQ of 65 to 75 or
lower may be considered to be mentally retarded if there is evidence of poor
adaptive functioning." Id. The state, of course, may contest Walker's experts'
particular suggestions on remand and may also contest the applicability of
measurement error to the inquiry of whether a petitioner has performed "at least
two standard deviations below the mean" under the Virginia statute.

18

The district court, without much explanation, did not consider the Flynn Effect
or the measurement error, stating that such evidence "does not provide a legal
basis for ignoring Walker's WAIS test scores." J.A. 266. But, as the Virginia

statute makes clear, the relevant question is whether Walker scored two
standard deviations below the mean, a question which is directly addressed by
Walker's expert opinion as to the Flynn Effect. Thus, not only did the district
court resolve a factual dispute against Walker contrary to the claims in his
petition and where the facts remained materially disputed it also refused to
consider relevant evidence, namely the Flynn Effect evidence. Therefore, on
remand the district court should consider the persuasiveness of Walker's Flynn
Effect evidence. And if the district court does credit that evidence, it should
then consider whether the Virginia statute permits consideration of
measurement error in order to determine whether Walker's purported score of
72 is "two standard deviations below the mean" as set forth under that statute.
19

As to Walker's 1998 WAIS test, Walker claims that his score of 86 is "highly
unreliable for multiple reasons" because it was administered by an
inexperienced intern who now claims she made "errors in the administration
and scoring of the test." J.A. 17; id. at 105-07. The district court rejected
Walker's characterization of the test, and concluded that if all of the
administrator's errors were added together, Walker would have been left with a
score of 77, "above the 70-75 cut-off." J.A. 267. But Walker claims that his
score cannot be reconstructed in the manner proposed by the district court,
Petitioner's Reply Br. at 18, and, moreover, has presented an affidavit from his
expert stating that the test results are so unreliable that they should be
"discarded." J.A. 113-14. In the face of this uncontested expert opinion, the
district court's re-calculation of Walker's score was error.

20

The district court also rested its judgment on the results of Walker's March 17,
2000 WAIS-III test, administered by Dr. Sautter, where Walker received a full
scale score of 77. J.A. 247. While Walker does not contest the validity of the
results of this test, Dr. Sautter has submitted an affidavit, explaining that after
an "opportunity to review a more comprehensive set of Darick's records ... I
conclude that Darick's cognitive deficits are consistent with mental retardation
as that disability is defined by ... the Commonwealth in its recently enacted
statute." J.A. 112-13. Moreover, Walker maintains that his score of 61 on the
GAMA test in May 2003 a score that is indisputably more than two standard
deviations below the mean more accurately reflects his disability.7

21

In some circumstances an Atkins claim may properly be dismissed where a


petitioner has IQ scores that are above the high-end of the intellectual
functioning measurement set forth in Virginia's definition and where
uncontested expert opinion verifies that such scores are an accurate
measurement of a petitioner's intellectual functioning. See, e.g., Walton v.
Johnson, 269 F.Supp.2d 692, 699 (W.D.Va.2003) (dismissing an Atkins claim

where petitioner's only accepted IQ scores were 90 (before the petitioner was
18) and 77 and where the expert that administered the latter IQ exam testified
that petitioner was "definitely not retarded."); Johnson v. Commonwealth, 267
Va. 53, 591 S.E.2d 47, 59 (2004) (holding that petitioner's Atkins claim was
frivolous because petitioner had received a 75 and 78 and because his own
expert witness stated that he was "not retarded"); Morrisette v. Commonwealth,
264 Va. 386, 569 S.E.2d 47, 56 n. 8 (2002) (rejecting an Atkins claim where
petitioner's IQ scores were 77 and 82 and where the evaluating psychiatrist
opined that petitioner's intelligence was "roughly below average"). Where, as
here, however, a petitioner has received IQ scores above and below two
standard deviations below the mean and where uncontested expert opinion
suggests that he is mentally retarded under the Commonwealth's definition,
dismissal is inappropriate. Accordingly, in this case further proceedings are
necessary to determine whether the preponderance of the evidence suggests that
Walker's lower scores are an accurate reflection of his intellectual functioning
or whether, as the state suggests, his higher scores are dispositive.
II.
22

While we conclude that the district court erred in dismissing Walker's claim,
we cannot conclude, on the basis of the record before us, that Walker's
execution would violate the Eighth Amendment. Rather, further proceedings
are necessary to determine whether, after consideration of all relevant evidence,
Walker has established that he is mentally retarded as defined by the
Commonwealth of Virginia. Walker maintains that further proceedings should
be before a jury or, in the alternative, seeks an evidentiary hearing before the
district court.

A.
23

Walker contends that he is entitled to a jury under both the Virginia statutory
scheme and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556
(2002). We disagree.

24

Walker is not entitled to a jury under the Virginia statute. Section 8.01-654.2 of
the Virginia Code sets forth the procedural framework for the resolution of
Atkins claims filed by petitioners, such as Walker, who were sentenced to death
before April 29, 2003. The relevant portion of that statute provides as follows:

25

A person proceeding under this section shall allege the factual basis for his
claim of mental retardation. The Supreme Court shall consider a claim raised
under this section and if it determines that the claim is not frivolous, it shall

remand the claim to the circuit court for a determination of mental


retardation.... If the claim is before the Supreme Court on direct appeal and is
remanded to the circuit court and the case wherein the sentence of death was
imposed was tried by a jury, the circuit court shall empanel a new jury for the
sole purpose of making a determination of mental retardation.
26

If the person has completed both a direct appeal and a [state] habeas corpus
proceeding under subsection C of 8.01-654, he shall not be entitled to file any
further habeas petitions in the Supreme Court and his sole remedy shall lie in
federal court.

27

Va.Code 8.01-654.2 (emphasis added). As the emphasized sections make


clear, the Virginia statute does not provide for a jury for claims raised in federal
court.

28

Walker nonetheless contends that he is entitled to a jury under section 19.2264.3:1.1(C), which provides that "in any case in which the offense may be
punishable by death and is tried before a jury, the issue of mental retardation ...
shall be determined by the jury as part of the sentencing proceeding." Walker
claims that his entitlement to a jury under this section cannot be severed from
the other applicable portions of the section; namely the definition of "mentally
retarded" and the defendant's burden of proof. But the portion of the Virginia
statute that refers to a jury determination does so in the context of the
appropriate procedure at sentencing in state court. It does not bear on the
appropriate federal procedure governing Walker's Eighth Amendment claim
that is based, in part, upon Virginia's definition of mentally retarded.

29

Walker further contends that his proposed interpretation of the Virginia


statutory scheme is supported by the canon of constitutional avoidance.
According to Walker, an interpretation of Virginia's statute that deprives him of
a jury would violate the Equal Protection clause of the Fourteenth Amendment
because there is no rational basis for treating petitioners who have completed
their state habeas proceedings differently than those who have not. As set forth
above, Va.Code. 8.01-654.2 permits petitioners whose convictions are final
but who have not sought state habeas relief to pursue their Atkins claims in state
court where a jury is required for all non-frivolous claims. On the other hand,
petitioners, such as Walker, who have completed state habeas review must
pursue their claims in federal court. Walker claims that such a distinction is
"arbitrary."

30

Walker's Equal Protection challenge to the Virginia statute is not sustainable.

As noted by the state, under the relevant Supreme Court precedent the standard
applicable to Walker's challenge is whether the "classification drawn by the
statute is rationally related to a legitimate state interest." City of Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432, 440-41, 105 S.Ct. 3249, 87
L.Ed.2d 313 (1985). Just as the federal habeas statute treats petitioners filing an
initial habeas petition differently than it treats those who are filing a successive
petition, see 28 U.S.C. 2244, so too may Virginia differentiate between
petitioners who have not yet presented claims under 8.01-654 and those who
have completed their 8.01-654 proceedings. As with the distinction at the
federal level, Virginia's differentiation is reasonably related to the state's interest
of efficient utilization of its judicial resources and satisfies the deferential
standard set forth in Cleburne. This is especially so, given that Walker is
entitled to present his federal claim in a federal forum.8
31

Nor can Walker establish entitlement to a jury under Ring v. Arizona. As an


initial matter, Ring was decided after Walker's conviction became final and is
not retroactive on collateral review. See Schriro v. Summerlin, ___ U.S. ___,
124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) ("Ring announced a new procedural
rule that does not apply retroactively to cases already final on direct review.").
Walker suggests Schriro is inapplicable because he is not seeking to vacate a
factual decision already made by a judge in favor of having that factual decision
made by a jury; rather, he is presenting his Atkins claim for the first time in his
petition and is therefore not seeking retroactive application of Ring. Petitioner's
Reply Br. at 22-23.

32

But even if Walker is not seeking retroactive application of Ring, he is not


entitled to a jury. The operative language of Ring provides that:

33

The dispositive question ... is one not of form, but of effect. (citation omitted).
If a State makes an increase in a defendant's authorized punishment contingent
on the finding of a fact, that fact no matter how the state labels it must be
found by a jury beyond a reasonable doubt. A defendant may not be exposed to
a penalty exceeding the maximum he would receive if punished according to
the facts reflected in the jury verdict alone.

34

536 U.S. at 602, 122 S.Ct. 2428; see also id. at 610, 122 S.Ct. 2428 ("I believe
that the fundamental meaning of the jury-trial guarantee of the Sixth
Amendment is that all facts essential to imposition of the level of punishment
that the defendant receives whether the statute calls them elements of the
offense, sentencing factors, or Mary Jane must be found by the jury beyond
a reasonable doubt.") (Scalia, J. concurring).

35

Walker maintains that the factual determination of "not-retarded" is required to


impose the death penalty. The Virginia statute authorizing "punishment for
conviction of felony" lends some support to this view. It provides that "[t]he
authorized punishments for conviction of felony are: (a) For class 1 felonies,
death, if the person so convicted was 16 years of age or older at the time of the
offense and is not determined to be mentally retarded." Va.Code 18.2-10.9
But the finding of mental retardation does not increase the penalty for the crime
beyond the statutory maximum death. Rather, a defendant facing the death
penalty may avoid that penalty if he successfully raises and proves by a
preponderance of the evidence that he is mentally retarded. Va.Code 19.2264.3:1.2(E) and 19.2-264.3:1.1(C). The state does not have a corollary duty
to prove that a defendant is "not retarded" in order to be entitled to the death
penalty. Accordingly, "an increase" in a defendant's sentence is not predicated
on the outcome of the mental retardation determination; only a decrease. See
also In re Johnson, 334 F.3d 403, 405 (5th Cir.2003) ("[T]he absence of mental
retardation is not an element of the sentence any more than sanity is an element
of the offense."); Walton v. Johnson, 269 F.Supp.2d 692, 698 n. 3
(W.D.Va.2003) ("[A] finding of mental retardation precludes the state from
carrying out the death sentence. Thus, it is analogous to the question of
competency to be executed in death penalty cases, which need not be decided
by a jury.").

B.
36

Walker contends that even if he is not entitled to a jury, he must, at a minimum,


receive an evidentiary hearing in the district court on his Atkins claim.
Petitioner's Br. at 56-60. We agree.

37

Walker's entitlement to an evidentiary hearing is not addressed by the federal


habeas statutes. Section 2254(e)(2) does not apply because Walker has not
"failed to develop the factual basis of [his] claim in State court." See Williams v.
Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) ("[A]
failure to develop the factual basis of a claim is not established unless there is
lack of diligence, or some greater fault, attributable to the prisoner or the
prisoner's counsel."). Because Atkins was decided after Walker's conviction
became final, neither he nor his counsel can be faulted for failure to develop the
factual basis of that claim.

38

Under Supreme Court and circuit precedent, an evidentiary hearing is required


if Walker "alleges ... facts that, if true, would entitle[ ] him to relief and
establishes one of six factors set out by the Supreme Court in Townsend v. Sain,
372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)." Fisher v. Lee, 215 F.3d

438, 455 (4th Cir.2000); see also Cardwell v. Greene, 152 F.3d 331, 338 (4th
Cir.1998) ("if ... the applicant has not failed to develop the facts in state court,
the district court may proceed to consider whether a hearing is appropriate or
required under Townsend.") (emphasis added). Townsend holds that "[w]here
the facts are in dispute, the federal court in habeas corpus must hold an
evidentiary hearing if the habeas applicant did not receive a full and fair
evidentiary hearing in a state court." Townsend, 372 U.S. at 312, 83 S.Ct. 745
(emphasis added).
39

The district court's refusal to hold an evidentiary hearing was error under
Townsend. As noted above, Walker has alleged facts that would entitle him to
relief and those facts remain disputed. Moreover, because he has never
presented his Atkins claim in state court, he has not received "a full and fair
evidentiary hearing" and thus easily satisfies several of the six factors
mentioned in Townsend. Id. at 313, 83 S.Ct. 745 (evidentiary hearing required
if "the merits of the factual dispute were not resolved in the state hearing" or
"for any reason it appears that the state trier of fact did not afford the habeas
applicant a full and fair hearing.").

40

Accordingly, on remand the district court should conduct an evidentiary


hearing to determine whether Walker is mentally retarded under Virginia law.
In this hearing, the district court should consider all relevant evidence, as set
forth in the Virginia statute, pertaining to the developmental origin, intellectual
functioning, and adaptive behavior aspects of Walker's mental retardation
claim. See Va.Code 19.2-264.3:1.1. The district court may ultimately
conclude that its initial resolution of Walker's claim was correct; the
preponderance of the evidence may indicate that Walker's scores on the 1984
WISC test, the 1998 WAIS-III test, and the 2000 WAIS-III tests are valid and
greater than two standard deviations below the mean. The district court may, as
well, conclude that the scores on these three tests are more reflective of
Walker's intellectual functioning than his score on the GAMA test. But,
whether or not the district court comes to the same conclusions upon
reconsideration, Walker is entitled under law both to an evidentiary hearing in
which he is afforded an opportunity to fully develop the factual basis of his
mental retardation claim and to consideration by the courts of all of the
evidence that is relevant to that claim under Virginia's statutory framework.

III.
41

The judgment of the district court is vacated and the case remanded for an
evidentiary hearing to address whether Walker is mentally retarded under
Virginia statute.

42

VACATED AND REMANDED.

Notes:
1

In section 2254 proceedings, the state's answer is filed pursuant to Rule 5 of the
"Rules Governing Section 2254 cases in the United States District Courts"
while the motion to dismiss is filed pursuant to Fed.R.Civ.P. 12(b)(6)See
Section 2254 Rule 11 ("The Federal Rules of Civil Procedure, to the extent that
they are not inconsistent with these rules, may be applied when appropriate, to
petitions filed under these rules."); Fed.R.Civ.P. 81(a)(2) ("These rules are
applicable to proceedings for ... habeas corpus ... to the extent that the practice
in such proceedings is not set forth in the statutes of the United States, the
Rules Governing Section 2254 Cases, the Rules Governing Section 2255
Proceedings, and has heretofore conformed to the practice in civil action.").

To the extent that the district court's decision was in the "nature of a grant of
summary judgment," the court was required to dispose of Walker's claim as set
forth in Federal Rule of Civil Procedure 56See Johnson v. RAC Corp., 491 F.2d
510 (4th Cir.1974) ("When a motion to dismiss ... is founded on matters outside
the pleadings, the district court is obligated to treat the motion to dismiss as one
for summary judgment and to dispose of it as provided in Rule 56.").

Walker contended before the district court that the Virginia statutory scheme
enacted afterAtkins did not apply because that scheme provides that petitioners
in Walker's position "shall not be entitled to file any further habeas petitions in
the Supreme Court and [their] sole remedy shall lie in federal court." J.A. 31.
Walker maintained that the district court should decide his case "directly under
the Eighth Amendment and under federal common law." Id. But the statutory
provision referenced by Walker merely denotes the forum where Walker must
present his claim, where, so long as it comports with Atkins, state law governs
the question of whether Walker is mentally retarded.

As is relevant here, the Commissioner's list includes the Wechsler Adult


Intelligence Scale (WAIS), the Wechsler Intelligence Scale for Children
(WISC), and the General Ability Measure for Adults (GAMA)

While the district court purported to rest its judgment on Walker's three WAISIII tests, the test that Walker took in 1984 is actually the WISC test

On IQ tests, standard deviations are measured in 30 point increments,


distributed evenly on either side of the mean. Thus, a score of two standard
deviations below the mean is 70 or lower while a score of two standard

deviations above the mean is 130 or higher. 95% of all test-takers will score
between 70 and 130, thus those scoring below two standard deviations below
the mean are in the bottom 2.5%
7

The district court discounted the results from the GAMA test because it was not
administered until Walker was 30 years old and therefore did "not support a
manifestation of retardation before the age of 18." J.A. 305. But, under
Virginia's statute, Walker is not required to submit an IQ test to establish the
"developmental origin" of his disability. Rather, such an assessment "shall be
based on multiple sources of information generally accepted by the field of
psychological testing ... including, whenever available, educational, social
service, medical records, prior disability assessments, parental or caregiver
reports, and other collateral data." Va.Code 19.2-264.3:1.1(B)(3). Moreover,
Walker's adult IQ scores are directly relevant to the "intellectual functioning"
component of Virginia's definition

Petitioner also maintains that Virginia's statute is arbitrary because it "treats


defendants differently depending on the purely arbitrary factor [of] whether a
particular defendant pursued a state habeas petition or simply let the 60-day
time limit on filing a state habeas petition run without filing."Petitioner's Br. at
51. But the Virginia statute does not permit such gamesmanship. If a petitioner
with an Atkins claim who has not pursued relief under 8.01-654 fails to timely
file his petition, that petition will be dismissed pursuant to 8.01-654.1. Thus,
8.01-654.2 does not waive the applicable filing deadlines of 8.01-654; rather
it requires submission of Atkins claims, when possible, "under such
subsection." And, such a claim would be procedurally defaulted in federal
court. See 28 U.S.C. 2254(b)-(c). Accordingly, as with any other claim for
relief under the Virginia and federal habeas statutes, petitioners must comply
with applicable filing deadlines or forfeit their claims.

Walker was convicted of violating Va.Code 18.2-31.1(8) which provides that


"the willful, deliberate, and premeditated killing of more than one person
within a three-year period" shall "constitute capital murder, punishable as a
Class 1 felony."

43

GREGORY, Circuit Judge, concurring in part and dissenting in part:

44

I agree with the majority insofar as it holds that Walker's petition should not
have been dismissed without an evidentiary hearing. I must dissent, however,
from the majority's failure to recognize that Va. Code 8.01-654.2 violates the
Equal Protection Clause.

45

As interpreted by the majority, Virginia's statutory scheme denies to Walker

45

As interpreted by the majority, Virginia's statutory scheme denies to Walker


what it gives freely to others with non-frivolous claims of mental retardation:
assured jury review. Stated otherwise, the majority allows Virginia to treat
unequally criminal defendants submitting non-frivolous claims of mental
retardation for the first time by withholding its juries from those who have
exhausted state remedies on other grounds. See Va.Code 8.01-654.2 ("If the
person has completed both a direct appeal and a [state] habeas corpus
proceeding under subsection C of 8.01-654, he shall not be entitled to file any
further habeas petitions in the Supreme Court and his sole remedy shall lie in
federal court."). Thus, Daryl Atkins and Darick Walker, despite being
identically situated for present purposes, will be treated unequally: Atkins
merely because he was on direct review will be allowed to present his
retardation claim to a jury, but Walker may not. This is unconstitutional.

46

The majority's error begins by adopting the Warden's contention that Virginia's
scheme merits merely rational-basis review. It is plain that "when state laws
impinge on personal rights protected by the Constitution," strict scrutiny not
rational-basis review is warranted. City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).1 The
Eighth Amendment's prohibition against the cruel and unusual punishment
embodied by the execution of the mentally retarded is surely a fundamental,
personal constitutional right. Thus, Virginia's law should be sustained only if it
is "suitably tailored to serve a compelling state interest." Id.

47

Virginia's post-Atkins statute cannot survive such scrutiny. The Warden


proffers two sides of the same "prompt finality" coin for Virginia's otherwise
arbitrary distinction: avoiding delay in executions from frivolous litigation and
encouraging finality of the judgments. See Appellee's Br. at 37 n. 12 (Virginia
legislature made policy choice to avoid "unnecessary delay for frivolous
litigation") and at 40 n. 15 ("Obviously it is a legitimate, even compelling, state
interest to further the finality of criminal judgments.").

48

First, I doubt the Warden precisely captures Virginia's interests when it passed
the statute dealing with Atkins claims. Evidently, the Commonwealth felt
sufficiently strongly that a jury had to decide these factual questions2 that it
mandated a jury trial for all persons on direct appeal. See Va.Code 8.01-654.2
("If the claim is before the Supreme Court on direct appeal and is remanded to
the circuit court and the case wherein the sentence of death was imposed was
tried by a jury, the circuit court shall empanel a new jury for the sole purpose
of making a determination of mental retardation."). At the very least, this adds
nuance to Virginia's interests: it commanded its circuit courts to empanel a jury
for some defendants, while it wished to deny the right to such a determination
to defendants like Walker. Thus, the question should be whether Virginia's

interest in promptly executing the tiny handful of death-row prisoners like


Walker who had exhausted state habeas appeals3 is "compelling," and if so,
compelling enough to justify denying these few persons a jury determination of
their Atkins claim.
49

Even accepting the Warden's proffered justification as compelling, surely this


scheme is not narrowly tailored; indeed, the statute seems to be an awfully
clumsy means of obtaining quick executions. The Commonwealth could have
allowed for an expedited state-court review of Walker's Atkins claim, just as
they did for those of other defendants. But by short-circuiting AEDPA and
pushing off Walker to federal court, Virginia denies us the benefit of its factfinding. I seriously doubt that this shortens the time to execution at all. Indeed,
it may well lengthen the review process by forcing federal courts perhaps
ultimately the Supreme Court to attempt awkwardly to harmonize federal
habeas procedures with both Virginia's substantive and procedural post-Atkins
statutes.

50

I know of no other reason why treating Walker the same as defendants like
Daryl Atkins would have been so unpardonably slow as to justify the denial of
equal treatment. As the Virginia Supreme Court noted about this very statute
just last year,

51

The different procedures for resolving this factual issue [whether the defendant
is mentally retarded] that the Warden urges are based solely on whether a
capital defendant happened to have his case on direct appeal or collateral attack
on April 29, 2003. To assign the finding of this fact to the trial court for one
group of qualifying defendants and to either a court or a jury for another, as the
Warden suggests, would treat similarly situated persons differently in violation
of the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution.

52

Burns v. Warden, 268 Va. 1, 597 S.E.2d 195, 196 (2004)(citing City of
Cleburne, 473 U.S. at 439, 105 S.Ct. 3249).

53

In sum, Atkins did not leave the states with unbridled authority to craft
procedures that would protect mentally retarded defendants. Rather, it allows
the states to develop" `appropriate ways to enforce the constitutional restriction
upon [their] execution of sentences.'" Atkins, 536 U.S. at 317, 122 S.Ct. 2242
(emphasis added). If nothing else, to be appropriate, procedures must comport
with the Constitution. The majority allows Virginia's violation of the Equal
Protection Clause by not requiring that Walker's claim, as would Atkins', be

heard by a jury of his peers. I respectfully remove myself from this part of the
decision and strongly encourage the district court to exercise its discretion
which this decision does not destroy to empanel a jury to hear Walker's
claim.

Notes:
1

The majority opinion cites, but misapplies,Cleburne for the idea that rational
basis review governs. Ante at 325-26. Cleburne establishes that mental
retardation itself is not a "quasi-suspect classification" such that all laws
affecting the mentally retarded merit heightened scrutiny. 473 U.S. at 442-47,
105 S.Ct. 3249. Cleburne also recognized quite plainly, however, that strict
scrutiny is warranted "when state laws impinge on personal rights protected by
the Constitution." Id. at 440, 105 S.Ct. 3249.

See Burns v. Warden of Sussex I State Prison, 268 Va. 1, 597 S.E.2d 195, 196
(2004) ("The threshold issue whether the defendant is mentally retarded
is a factual one.").

There appears to be only one other Virginia death-row inmate who, like
Walker, exhausted state remedies on other grounds and then raised a mental
retardation claim afterAtkins. Five other death-row prisoners had completed
state habeas proceedings when Atkins was decided, but none of them raised an
Atkins claim and all have since been executed. Thus, it is not as if scores of
cases threaten to drown Virginia's courts with frivolous retardation claims.

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